Edelsten & Agosti
[2024] FedCFamC2F 1258
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edelsten & Agosti [2024] FedCFamC2F 1258
File number(s): SYC 3833 of 2023 Judgment of: JUDGE STREET Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – Spousal maintenance liability order discharged – all outstanding amounts reduced to a nil sum – significant change of circumstances of both the applicant and respondent - respondent remarried Legislation: Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Foreign Judgments Act 1991 (Cth)
Marriage Act 1961 (Cth)
Cases cited: O'Regan & Douglass [1969] ALR 836 Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 6 September 2024 Place: Sydney Counsel for the Applicant: Mr M Auld Solicitor for the Applicant: Abbott Delaney Lawyers Respondent: Appeared via video and audio-link ORDERS
SYC 3833 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EDELSTEN
Applicant
AND: MS AGOSTI
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 83 of the Family Law Act 1975 (Cth) and section 104 of the Child Support (Registration and Collection) Act 1988 (Cth), the registered spousal maintenance liability number …, of the applicant to pay the respondent spousal maintenance made in mid-2000 in the City B, Country C Family Court is discharged as of today’s date and all current amounts outstanding pursuant to the same are reduced to a Nil sum.
2.Pursuant to section 114 of the Family Law Act 1975 (Cth), the respondent is restrained from purporting to enforce the spousal maintenance order liability against the applicant made in mid-2000 in the City B, Country C Family Court in any other country.
3.Pursuant section 104 of the Child Support (Registration and Collection) Act 1988 (Cth), the current Departure Prohibition Order on the applicant is to be removed as of today’s date by the Child Support Registrar.
4.The applicant is forthwith directed to forward a sealed copy of these orders to the Child Support Registrar with the reference number ….
5.There be no Order as to costs to the intent that each party pay his or her own costs of and incidental to these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 30 May 2023 by the applicant, who is the former husband of the respondent, seeking an order under s 83 of the Family Law Act 1975 (Cth) (“the Act”), to discharge a registered spousal maintenance liability in respect of a spousal maintenance order made in mid-2000 in the City B, Country C Family Court.
In summary, it appears that the respondent obtained the benefit of the registration of that spousal maintenance order under the Child Support (Registration and Collection) Act 1988 (Cth) in about 2007. An objection was lodged by the applicant, who raised the fact that the respondent had remarried after the making of the order.
Section 82(4) and (8) of the Act provides as follows:
Cessation of spousal maintenance orders
…
(4) An order with respect to the maintenance of a party to a marriage ceases to have effect upon the remarriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders
…
(8) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.
Section 83 of the Act provides as follows:
Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
a. made by the court; or
b. made by another court and registered in the first - mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
c. discharge the order if there is any just cause for so doing;
d. suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
e. revive wholly or in part an order suspended under paragraph (d); or
f. subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court's jurisdiction under subsection (1) may be exercised:
a. in any case--in proceedings with respect to the maintenance of a party to the marriage; or
b. if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; or
c. if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
a. that, since the order was made or last varied:
i.the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
ii.the circumstances of the person liable to make payments under the order have so changed; or
iii.in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;
as to justify its so doing;
b. that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
ba. in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;
c. that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first - mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
a. the other party; or
b. any other person for the benefit of the other party.
(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second - mentioned order since the specified date, being moneys that would not have been required to be paid under the second - mentioned order as varied by the first - mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second - mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
The objection by the applicant was unsuccessful, with a reasoning focusing upon the registrable nature of the overseas order rather than upon the effect of s 82(4), which clearly has a breadth of operation in its meaning that would include a foreign marriage which would be consistent with Part VA the Marriage Act 1961 (Cth) and the provision itself arose out of the injustice of the consequence of a remarriage recognised in the decision in O'Regan & Douglass [1969] ALR 836. Unfortunately, the applicant did not pursue, at that stage, a further challenge to the objection.
The objection process, however, does not give rise to any res judicata in respect of the administrative action concerning registration and enforcement of an overseas spousal maintenance order. The jurisdiction invoked by the applicant in the commencement of these proceedings, is one arising under s 39 of the Act which is thein the breadth of meaning of matrimonial cause in s 4(1)(c) and s 4(1)(eb). This Court is vested with that jurisdiction also pursuant to s 132 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and it also has subject matter jurisdiction pursuant to s 104 of the Child Support (Registration and Collection) Act 1988 (Cth). The Court notes that there are similar provisions in relation to de facto relationships under Part VIIIAB s 90SI and s 90SJ(2) of the Act in respect of s 82(4) and s 83.
The Court explained, at the commencement of the hearing, to the respondent, who is unrepresented, the nature of the process that the Court would follow, and the respondent confirmed she understood the nature of that process.
The Court identified the evidence that was admitted, after hearing objections from the respondent, being the applicant's affidavit of 31 July 2024, the applicant's financial statement dated 7 August 2024, as well as receiving into evidence the respondent's affidavit dated 16 August 2024, a tender bundle of documents from the respondent, the respondent's financial statement dated 1 August 2024, and an updated spousal maintenance account statement, dated 17 August 2024, from the Child Support Agency identifying the current debt in the amount of $244,353.24.
That significant amount of spousal maintenance has accumulated on the basis of the registration in about 2007 of the spousal maintenance order made in mid-2000.
The applicant first contends that there has been a relevant change of circumstances within s 83(2)(a)(i) of the Act of the person who has the benefit of the order, given the remarriage of the respondent that occurred in 2001, after the making of the order.
The applicant also contends that there has been a change of circumstances from the time of the making of the order, when the spousal order reflected approximately one-tenth of the monthly earnings of the applicant, to a position where he is subsisting in his work as tradesperson, earning approximately $1,100 a week, and with an expenditure of approximately $1,018, and has property to the value of approximately $4,627. The applicant has no capacity to back the current debt or the continuing maintenance.
It is also submitted that the significant period of time since the making of the spousal order should also be characterised as a change of circumstances. The applicant also identifies consequence of that spousal order being registered and unpaid is that the applicant is the subject of a departure prohibition order, and cannot leave Australia to travel overseas.
The respondent opposes the making of the orders sought by the applicant and contends the registration should remain in place, that the respondent has ignored the orders, that this Court cannot rehear these matters which the respondent says has been finally determined by the foreign courts having the only jurisdiction and that notwithstanding her remarriage the want of property and failure to pay are special circumstances that warrant the Court otherwise ordering under s82(4).
There is no issue before this Court, as to any failure by the applicant to pay child maintenance. The application under s 83 is only concerned with the spousal maintenance order and the Court is informed that the whole of the amount accumulated by the Child Support Agency, as the relevant authority to enforce the overseas spousal maintenance order, is attributable only to the spousal maintenance order made in mid-2000.
The applicant was born in 1959 and is now 64 years old. The applicant was a Country D citizen by birth, and became an Australian citizen in 1986, and is an ordinary resident of Australia. The applicant re-partnered in about early 2024, and currently lives in rental accommodation, and may have to move to new accommodation. The applicant identifies himself as being in good health and is currently self-employed as a tradesperson, operating a business as a sole trader. The applicant identified that the respondent was born in 1956 and is now 68. The applicant identified that the respondent is a Country D citizen by birth and became an Australian citizen in 1986. There is one child of the relationship, Mr E, who is now 32 years of age.
The applicant, in his affidavit, identified that the parties cohabited in Country D in about 1982, and were married in 1982, in City F, Country D. The parties separated in Country C in about 1998. The parties were divorced under Country D Law in mid-2000, which is the same date as the making of the spousal maintenance order, in circumstances where it is apparent there was no lump sum property order made and the spousal order was for the rest of the respondent's life.
In relation to the health of the respondent, the applicant identified he believed she was in good health, and is retired, and in receipt of a government pension.
The applicant identified a period of cohabitation with the respondent in Country D until 1983, and where they then moved to Brisbane in 1983 and then City G in 1986, leading up to the divorce order in mid-2000. There is a translation of that divorce order annexed to the applicant's affidavit and, relevantly, it identifies that there was a monthly spousal order for the benefit of the respondent in an amount that equates to an amount of approximately AUD$750.
That Country D Court identified the then salary of the applicant, in relation to his capacity to pay, and did not accept the respondent's contention that he earned a different amount per month, but came to the conclusion that there should be a compensation payment in relation to the relevant difference in living standards to the tune of a lifelong approximately AUD$750 per month. The translation identifies an order to the effect that the applicant pay the respondent compensation by way of a monthly payment of approximately AUD$750 for the rest of her life.
The applicant relocated from Country C to Sydney in about 2001. It is not in dispute that the respondent married Mr H in 2001 in City J, USA, and that the marriage was registered with the local Country D Consulate, and that marriage was then dissolved by reason of a divorce in mid‑2003.
The applicant explained that he ceased making spousal maintenance payments after he discovered that the respondent had been not only remarried, but divorced. The applicant contended that he continued to pay child support in respect of the child of the marriage. The applicant identified the Child Support Agency statement referable to the subject matter of these proceedings, and his endeavours in 2009 to lodge a notice of objection, which relevantly identified the remarriage by the respondent. The determination of that notice of objection was one that misunderstood the nature and the work done by s 82(4) of the Act, and perceived the significance of the marriage as relating to the registrable nature of the order, unless there in special circumstances the Court otherwise orders. That objection determination understanding the breadth and effect of s 82(4).
The remarriage of the respondent meant that the liability under the overseas spousal maintenance order ceased to have effect, unless in special circumstances the Court otherwise orders. There were no apparent special circumstances that would warrant the Court otherwise ordering and not Court has otherwise ordered. The monthly spousal maintenance order should not have thereafter been either the subject of purported enforcement steps, or accumulation of further amounts. It is an understandable unfairness to the applicant to have been subjected to the accumulation of purported spousal maintenance liabilities that should never have accrued given the remarriage, unless a Court otherwise ordered, and to have suffered the consequential impeding of his freedom to leave Australia, as a result of a departure prohibition order that, in these circumstances, should not have been in place.
The applicant identified the impact on him of the proceedings, and an endeavour to try and resolve the matter in the then Federal Magistrates Court which was unsuccessful, due to a failure to pursue the same. There was also an appeal with the Court of Appeal of City B, Country C in late 2012, which was unsuccessful, and the applicant was ordered to pay the respondent's costs.
It is the outcome of that appeal in particular upon which the respondent has focused, to the effect of submitting that there has been a final appellate order, and that the matter should not be allowed to be reopened, and disputing this Court's jurisdiction. This Court has earlier identified it clearly has jurisdiction in respect of the order made in mid-2000 for spousal maintenance registered in Australia for alleged enforcement.
The applicant identified that he had no capacity to pay the orders made in late 2012 by the Court of Appeal of City B, and did not believe he would be in a financial position to re‑challenge the matter, and effectively buried his head in the sand from late 2012 to 30 May 2023. That is an understandable course for the applicant to have taken, given the unfairness to which the Court has referred above.
The applicant explained that he was the subject of a departure prohibition order, and that it had a significant impact upon him and his sense of freedom and that he wished to travel overseas with his new partner.
The applicant identified that he has a business under a particular business name, with no employees and that he is responsible for all aspects of the business, which he started in about 2010. The applicant identified his gross weekly income of approximately $1,100 per week, which varies, and sometimes he makes more. The applicant identified his rental cost of which the business operates in is approximately $550 per week, and his living expenses are approximately $450 per week. The applicant identified having a small net taxable income in the order of $14,131, and that he has no superannuation.
The applicant was cross-examined by the respondent in a way which endeavoured to identify the subjective impact upon the respondent of the process that she had pursued, but advanced no adverse impact on the credibility of the applicant, nor was there developed any special circumstance beyond the unsuccessful pursuit of challenged by the applicant in the Country D courts and undisputed failure to pay the spousal maintenance.
The respondent put on an affidavit, dated 16 July 2024, which sought to summarise her view as to the legal consequences of the registration of the overseas order and circumstances shortly after the making of that order. The respondent maintained in her affidavit, which she repeated in her submissions, that she wanted to try and resolve the matter and did not want to go to Court. That assertion does not sit with the respondent’s opposition to the orders sought.
The respondent identified that she stopped working in early 2022, due to health issues. From the evidence given by the respondent in her submissions, it is apparent that the applicant has stress or anxiety issues, and that she is now a retiree and pensioner, living in a unit worth approximately $1.1m.
The respondent’s affidavit admitted the marriage in 2001 to Mr H, and the date of the pronouncement of the divorce. The respondent identified that she returned to Australia in mid‑2023. The respondent identified her history of studies, in pursuing health care.
The respondent referred to payments that were made by the applicant from mid-2000 to late 2004 in the sum of $1,750.00. On the evidence before this Court, unless in special circumstances the Court otherwise ordered, there should not have been one further payment after early 2001. However, there is no application for recovery by the applicant against the respondent, notwithstanding the substantial means of the respondent, compared to that of the applicant.
The respondent referred to the registration process to enforce the overseas spousal maintenance order in late 2007, resulting in a registration that occurred in early 2008, and the making of some payments. The respondent referred to the proceedings that were taken between 2009 and 2014, relating to this spousal maintenance order that should not have been given effect in Australia after the remarriage of the respondent without a Court order in special circumstances. The respondent identified events after 2016, and discussions that took place up to 2019, and then from 2022 to 2024, and also put into evidence a bundle of documents that were marked as exhibit B.
APPLICANT’S SUBMISSIONS
In relation to s 83(2)(a) of the Act, the applicant’s submissions identified the significance of the changed position in respect to the marriage of the respondent. The applicant also identified the substantial change of financial circumstances of the respondent, as at today. The applicant effectively has today no assets, and a meagre income which is being exhausted effectively by his outgoings and rent. The applicant is also supporting a partner. This is in stark contrast to the circumstances of the respondent who owns a home with a value of about $1.1 million, with a mortgage of about $158,000.
The applicant submitted that the Court must, in relation to s 83, take into account the provisions in s 72 and s 75(2) of the Act, and accepted the onus was upon the applicant to satisfy the Court that the order should be discharged. The applicant submitted there were not special circumstances to warrant the Court otherwise ordering.
The applicant identified the s 75 factors and maintained this was an appropriate case for the making of an order discharging the liability in respect of spousal maintenance. The applicant, through his counsel, submitted that the Court should also make an order restraining the respondent from purporting to enforce the order elsewhere in any other country. The applicant also sought for orders to remove the current departure prohibition order and notifying the Child Support Registrar of the same.
Importantly, the applicant sought no order as to costs. It was a reasonable and proper approach for the applicant to take. It is appropriate, in all the circumstances, that there be no application for a costs order, given that the Court can, and is in a position to, determine the matter today and that the Court is not persuaded that there are special circumstances to otherwise order.
RESPONDENT’S SUBMISSIONS
The respondent put on submissions advancing a subjective legal understanding of an entitlement to an alleged final order from a foreign Court, and took issue with this Court's jurisdiction to discharge that order.
The respondent also focused upon her own perception of unfairness, in respect of an order currently in place which have not been paid. In that regard the applicant has no prospect of paying the same, and his freedom of movement is curtailed, as a result of an order that in the absence of special circumstances and the Court otherwise ordering should not have been enforced, when it is the position that the respondent had remarried. The respondent maintained that the unfairness was to her, in not having the continuation for her life, of a spousal maintenance order that has not been paid, cannot be paid by the applicant. The respondent pointed out that she received not lump sum property settlement.
The respondent also sought to agitate the unfairness of this matter being revisited, having been the subject of a notice of objection in 2009, and having been the subject of an unsuccessful appeal which concluded in 2014. The respondent complained about the applicant’s burying of his head in relation to now agitating this matter.
FINDINGS AND CONCLUSIONS
The Court finds that the circumstances of the respondent, being the person for whose benefit the order was made in mid-2000, have changed, and have changed in a substantial and material way as a result of the respondent’s marriage after the making of the order.
The Court also finds that the circumstances of the applicant, being the person liable to make the payments, have also changed in substantial and material ways, in terms of his meagre financial position, reduced income, self- employment and want of capacity to make the spousal maintenance payments. The applicant is barely subsisting with his rent and expenses on his current income as a tradesperson. The applicant has no assets from which he could meet the significant liability that has been accumulated on the basis of the spousal maintenance order that had ceased to have effect, given the operation of s 82 and the absence of the Court otherwise ordering.
The pursuit of proceedings in the Country D Courts does not deprive this Court of jurisdiction and whilst there are areas in which international comity requires significance to be placed on the decisions of other Courts, that has no application to this Court’s powers under s83 where a foreign spousal maintenance order has been registered. Nor does such comity prevent the work done by s 82 unless in special circumstances a Court otherwise orders. The Country D Court orders are not orders made under s 82. This Court clearly has jurisdiction to make the orders sought by the applicant.
Whilst there may be special circumstances in a particular case, such as substantial assets and deliberate ignoring of orders where there is capacity to pay, that is not this case. The want of a lump sum settlement is not in this case special circumstances that warrant the Court otherwise ordering. The unsuccessful pursuit of the Country D Court process are not special circumstances that warrant the Court otherwise ordering. The failure to pay, given the want of capacity are not special circumstances that warrant the Court otherwise ordering. The delay in making this application and abandoning earlier potential challenge are not special circumstances that warrant the Court otherwise ordering. The substantial amount that has accrued is not a special circumstance in this case that warrants the Court otherwise ordering.
The Court is satisfied that there has been a change of circumstances that justifies the Court discharging the order, and decreasing the outstanding spousal maintenance liability amount to zero.
The Court has taken into account s 72 of the Act, which requires the Court to consider, if one was making a spousal order, whether it is reasonable for the Court to make such an order, and whether the other person is unable to support himself or herself adequately. On no view would the respondent satisfy a requirement for the making of a spousal order today. It is not the case that she is unable to support herself adequately, and taking into account, her age, her physical and mental capacity, and the circumstances under s 75(2) to which the Court will expand on, this is not a case where it would be reasonable to require the applicant to make a spousal maintenance payment of the kind the subject of the registration that occurred, because he has no ability to do so.
In terms of other adequate reason, the Court regards that s 82(4) ceasing to have effect given the absence of a Court otherwise ordering, as falling within the meaning of section 72(1)(c), and given the admitted remarriage by the respondent is sound reason why the maintenance order would not continue.
In relation to s 75(2)(a) of the Act, the Court has taken into account the age and health of the parties, as identified above.
In relation to s 75(2)(b), the Court has also taken into account the limited income and assets of the applicant, as identified in his financial statement, and the financial property, pension and resources of the respondent, who is in a substantially better financial position than the applicant.
In relation s 75(2)(c), there is no relevant child in respect for whom the parties no longer have control of, as the child is now an adult.
In relation to s 75(2)(d), it is the case that the applicant has re-partnered, and his ability to sustain and look after himself and his new partner are relevant considerations which the Court has taken into account.
In relation to s 75(2)(e), other than the applicant's responsibility to his now partner, the applicant has no obligation to support any other person.
In relation to s 75(2)(f), it is apparent that the respondent is in receipt of a government pension, which has been identified in her financial statement, and there is no need to set it out.
In relation to s 75(2)(g), the Court must take into account the standard of living that in all the circumstances is reasonable. Given that the parties divorced, to extract a further $1,000 a month from the applicant, on the evidence before this Court, would be anything but reasonable and would not permit the applicant to have a standard of living that is in all the circumstances reasonable. The cessation of the spousal maintenance order does not in any way diminish the standard of living currently being enjoyed by the respondent.
In relation to s 75(2)(h), it is apparent that the respondent is in receipt of a government pension and has now ceased working. The applicant does not have an adequate income to make the spousal maintenance payments which are purported amounts the subject of a lifetime order.
In relation to s 75(2)(ha), there is no relevant creditor to take into account.
In relation to s 75(2)(j), whilst the Court readily accepts that there were contributions made during the marriage and its cessation by the divorce order back in 2000, beyond the short period of payment referred to above until becoming aware of the marriage and divorce, means that there has been no relevant contribution by either party to the other party's current financial circumstances.
In relation to s 75(2)(k), the Court has taken into account the duration of the marriage prior to the divorce, as identified above. It is apparent that the parties continued to work until the respondent retired, and that the applicant is still working in his business.
In relation to s 75(2)(l), there is no relevant role to be protected, given their child is now an adult.
In relation to s 75(2)(m), the Court has taken into account that the applicant is now cohabitating with a partner, and that they are paying what is, on his income, a significant rent, and are hoping to travel overseas.
In relation to s 75(2)(n), the Court has taken into account that the order will discharge a liability in the amount of $244,353.24, as well as restraining the respondent from seeking to enforce the spousal maintenance order in any other country.
In relation to s 75(2)(naa), there is no relevant order or declaration within that provision.
In relation to s 75(2)(na), there is no outstanding child support that is before this Court.
In relation to s 75(2)(o), the other fact or circumstance the Court considers affects the justice of this case is the remarriage of the respondent to which the Court has referred and absence of any special circumstances embraced by a Court otherwise ordering.
There is no matter that falls within s 75(2)(p) or s 75(2)(q).
The respondent, in the course of her submissions, referred to the Foreign Judgments Act 1991 (Cth). It should be noted that this is not a case in which the orders of the City B, Country C Family Court were registered under the Foreign Judgments Act 1991 (Cth). However, the Court does point out that s 6(7)(d) Foreign Judgments Act 1991 (Cth) provides:
Application for, and effect of, registration of foreign judgments
…
(7)(d) The registering court has the same control over the enforcement of a registered judgment;
as if the judgment had originally been given in the court in which it is registered.
…
In relation to s 6(7)(d), that means that the foreign judgment, even if one were to look at the Foreign Judgments Act 1991 (Cth), would be no more enforceable in Australia than if it had been made by an Australian court, once the respondent remarried. The reference to that Act does not assist the respondent in relation to the consequences of the work done by s 82 of the Act or establish special circumstances.
The Court notes this is not a case where there is any recovery of arrears, under s 82(8), that needs to be taken into account.
The Court has taken into account that there was no property settlement at the time of the divorce but is not persuaded that in this case this amounts to special circumstances whereby this Court should otherwise order. The respondent remarried which caused the cessation of the spousal maintenance order that she for her lifetime had she stayed in Country D or in another Country, unless a Court otherwise ordered. The respondent did not remain in Country D, nor is the applicant in Country D. The submissions advanced by the respondent in relation to there being a legal finality because of the Country D court orders that were made, are misconceived and do not satisfy this Court that there are special circumstances to otherwise order. There is no res judicata that has arisen and this Court has jurisdiction to make the orders sought under s 83.
The applicant has persuaded the Court that this is an appropriate case to discharge the order of mid-2028, and to decrease the amount outstanding to zero.
The Court is satisfied of the requirements of s 83(2) of the Act and the Court regards the retrospective nature of the order in terms of reducing the debt to zero as being appropriate within s 83(6) of the Act.
The Court is also of the view that because there should be no amount outstanding in respect of the spousal maintenance liability, it is appropriate that the Court make an order pursuant to s 104 of the Child Support (Registration and Collection) Act 1988 (Cth), to bring the current departure prohibition order on the applicant to an immediate end. The applicant should not be the subject of any further curtailment of his freedom of movement, and the Court has provided for an appropriate notification to the Child Support Registrar.
It is for these reasons, the Court makes the above orders.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 23 September 2024
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